[Redacted], Arica C., 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 25, 2021

Appeal No. 2019000746 (E.E.O.C. Feb. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arica C.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Request No. 2020004843 Appeal No. 2019000746 Agency No. ARCENORL15MAR01167 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019000746 (August 19, 2020). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c). BACKGROUND At the time of events at issue, Complainant worked as a Marine Endangered Species Observer assigned to the Agency’s vessel, the USACE Dredge Wheeler. On April 15, 2015, Complainant filed a formal EEO complaint alleging the following claims: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020004843 2 1. Complainant was subjected to sexual and non-sexual harassment on the basis of sex (female) when: a. On December 1, 2014, Complainant noticed that the zip ties she used to secure her belongings aboard the Agency vessel had been cut and a Common Access Card (CAC) she borrowed from crew member (C1) was missing, leading her to believe he had entered her room and gone through her personal belongings. b. On December 3, 2014, Complainant caught another crew member (C2) in her room going through her trash. c. On December 9, and 16, 2014, Complainant was sexually and physically assaulted three times by C1. d. On December 21, 2014, Complainant was physically assaulted by another crew member (C3), because he suspected her of talking to his girlfriend. 2. Complainant claimed that she was subjected to reprisal for engaging in protected Title VII activity (reporting the alleged harassment and assaults) when: a. On December 21, 2014, Complainant was told she would be arrested if she did not stay in her quarters until she could be escorted off the Agency vessel. b. On December 22, 2014, Complainant was met by members of the Freeport Texas Police Department as she left the vessel, was interviewed and escorted by police to a Coast Guard office. c. On December 22, 2014, Complainant was informed by her supervisor that they could no longer employ her. On April 30, 2015, the Agency dismissed the formal complaint for failure to state a claim and untimely EEO Counselor contact. The Agency concluded that Complainant was a contractor and not an Agency employee and therefore failed to state a claim. Complainant filed an appeal. In EEOC Appeal No. 0120152150 (Oct. 29, 2015), EEOC reversed the Agency’s procedural dismissal and found that the Agency exerted sufficient control to be considered a joint employer for the purposes of filing an EEO complaint under 29 C.F.R. Part 1614. The Agency conducted an initial investigation and supplemental investigation. Complainant requested a final decision. In its August 23, 2018 final decision, the Agency found that Complainant did not establish that she was subjected to unlawful sexual harassment. Specifically, regarding claims 1(a) and 1(b), the Agency, in its final decision, found that C2 had articulated legitimate, nondiscriminatory reasons for grabbing Complainant’s trash and that the evidence contradicted Complainant’s allegation regarding C1 and claim 1(a). 2020004843 3 Regarding claim 1(c), the Agency found that while there is evidence that Complainant and C1 had some degree of inappropriate contact of a sexual nature on board, there is insufficient evidence to prove that Complainant was more likely than not subjected to sexual harassment or assault by C1 on the three occasions identified in her formal complaint, or that management knew or should have known and failed to take remedial action. The Agency’s final decision further found that the evidence showed that Complainant had credibility issues. Specifically, the Agency found that the “details of Complainant’s allegations, including when and how many times they occurred varied depending on to whom she spoke and when.” Final Agency Decision at 22. Regarding claim 1(d), the physical assault allegation, the Agency found that there is insufficient evidence to show that Complainant was assaulted by C3. The Agency found, however, that Complainant was subjected to unlawful retaliation when she reported the harassment issues referenced above. Specifically, the Agency, in its final decision, found “the evidence of record shows that once Complainant made allegations of sexual and non- sexual assault to [the Captain] his actions with respect to Complainant were inconsistent with the actions he should have taken with the alleged perpetrators…[The Captain] did not order [C3] or [C1] to stay in their rooms until they could be taken off the ship and an investigation conducted. Instead, he directed Complainant to go to her room and stay there until she could be escorted off the ship, and when she did not stay in her room, he threatened to have her forcibly removed from the ship.” Final Agency Decision at 37. The final decision ordered the Agency to take various actions including issuing a final decision on compensatory damages and to pay Complainant any pay she would have received after she left the vessel, had she completed her full employment, and reasonable attorney’s fees and costs. Complainant filed an appeal from the Agency’s finding of no discrimination regarding her sexual and nonsexual harassment claims. In EEOC Appeal No. 2019000746 (Aug. 19, 2020), Complainant’s appeal was dismissed as untimely filed. The decision reasoned that Complainant received the final agency decision on August 27, 2018, but that Complainant did not file her appeal until November 14, 2018, outside of the applicable time period. In her request, Complainant asserts, through her attorney, that her appeal was timely filed on September 24, 2018. Complainant submits with her request a Notice of Appeal form dated September 24, 2018, which she asserts reflects that her initial appeal was filed on September 24, 2018. Thus, Complainant asserts that her appeal must now be considered on the merits. Complainant also requests that we consolidate this matter with EEOC Appeal No. 2019002357, in which she appealed the Agency’s final decision on compensatory damages related to the Agency’s finding of unlawful retaliation.2 2 Commission records reflect that EEOC issued a decision in this matter on September 22, 2020. Thus, we decline to address it further herein. 2020004843 4 In response, the Agency requests that we deny Complainant’s request for reconsideration. The Agency asserts that the September 24, 2018 Notice of Appeal form which Complainant submitted with her request is not part of the record for the initial appeal (EEOC Appeal No. 2019000746). ANALYSIS The initial decision erred when it dismissed the formal complaint on the grounds the appeal was untimely filed. We concur with the Agency that the September 24, 2018 Notice of Appeal form, which Complainant submits with her request, is not included in the record for the initial appeal. However, the record for the initial appeal (Appeal No.. 2019000746) contains a copy of Complainant’s initial appeal filed via FedEx on September 26, 2018. The Notice of Appeal form in the record for Appeal No. 2019000746 is also dated September 26, 2018, and indicates that the final agency decision was received by Complainant’s attorney on August 27, 2018. Thus, we find the appeal was timely filed and we VACATE our initial decision dismissing Complainant’s appeal as untimely filed. We will now turn to the merits of the complaint. Claims 1(a)-1(b) To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Based on the foregoing, we do not find that Complainant established that the conduct occurred as alleged and/or that it was based on her sex. The Agency properly found that Complainant failed to establish, by a preponderance of the evidence, that she was subjected to harassment based on sex with respect to claims 1(a)-1(b). Regarding claim 1(a), Complainant asserts that C1 entered her room cut the zip ties securing her personal belongings and went through her belongings.3 3 The record reflects that C1 subsequently left the employment of the Agency on disability retirement. 2020004843 5 The record is devoid of evidence corroborating claim 1(a). The record contains C1’s testimony from the AR 15-6 investigation conducted by the Agency. Therein, C1 asserted that he did not go into Complainant’s room. Supplemental Report of Investigation (Supp. ROI) at 434.4 As a result of Complainant’s decision not to elect a hearing before an AJ, we do not have the benefit of an AJ’s credibility determinations or an AJ overseeing the further development of the record. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged act occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Brand v. Dep’t Of Agriculture. EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said/she said” situation where complainant requested a final decision and an AJ did not make credibility determinations). Regarding claim 1(b), the record contains a declaration under penalty of perjury from C2. Therein, C2 asserts that the incident involving the trash did not occur in Complainant’s room.5 Report of Investigation (ROI) at 273-274.6 Rather, C2 states that he was on watch and walked around to the port side of the ship and saw a common trash barrel that usually has loose trash in it. Id. C2 states that he saw a 13-gallon plastic bag sticking out of the barrel. Id. C2 states that he picked up the bag and stated “[w]ho the hell put that in there?” and that Complainant came around the corner and grabbed the bag out of his hand and said that it was hers. Id. C2 told Complainant to take her personal trash to the dumpster. Id. The record also contains a declaration under penalty of perjury from the Captain of the vessel (Capt.). Therein, Capt. asserts that regarding this matter that he believed Complainant put her trash on the back deck and that C2 moved the trash because it should have been put in the dumpster. ROI at 259. Complainant has not established that C2’s action were based on her protected class. Claim 1(c)-Sexual Harassment Allegation The Agency properly found that Complainant did not establish that she was subjected to unlawful sexual harassment. Complainant informed the Captain via text message on December 21, 2014, that C1 “grabbed [her] boobs, nipples, buttocks, and tried to stick his hands down [his] pants on different occasions.” ROI at 263. Complainant in her interview with the Captain on December 21, 2014, described several incidents of a sexual nature with C1. Supp. ROI at 312- 313. 4 The Commission’s copy of the supplemental ROI contains two sets of page numbers. We will cite to the page numbers contained at the lower right corner of the supplemental ROI. 5 Complainant, in her formal complaint, initially stated this incident occurred in her room. ROI at 22. However, in her declaration, under penalty of perjury, Complainant stated it did not occur in her room but on deck. ROI at 253. 6 The Commission’s copy of the initial ROI contains two sets of page numbers. We will cite to the page numbers contained at the lower right corner of the initial ROI. 2020004843 6 Complainant asserts the first incident occurred when she went to C1’s room to ask him a question about Wi-Fi on December 9, 2014. Supp. ROI at 316-317. Complainant states at this time C1 tried to kiss her and tried to grab her legs. Supp. ROI at 320. While the record reflects that sexual contact occurred between Complainant and C1, we find that Complainant has not established, by a preponderance of the evidence, that the contact was unwelcome. In its final decision, the Agency stated Complainant and C1 had some degree of inappropriate contact of a sexual nature on board. The record contains a copy of the Agency’s AR 15-6 investigation. Therein, the findings of the AR 15-6 investigation provided “I do believe that inappropriate consensual behavior that was sexual in nature did occur…between [Complainant and C1]…Based on the sworn statement from [C1] and the lack of confidence in [Complainant’s] viewpoint, [C1] and [Complainant’s] encounters appear to have been consensual.” Supp. ROI at 409. The record contains a declaration under penalty of perjury from Complainant. ROI at 245. Complainant asserts that her encounters with C1 were not consensual and she told him “no” and “stop.” Id. The record also contains a summary of C1’s interview for the Agency’s AR 15-6 investigation. C1 asserted that Complainant came to his room a couple of times. Supp. ROI at 434. C1 stated that one-time Complainant came to his room, she “began talking about her fantasies and fetishes. [Complainant] then sat on [C1’s] lap and [C1] played to her fantasy which included spanking.” Id. C1 stated that another time Complainant came up to him portside and rubbed her backside against him and grabbed his thighs. Id. C1 stated that their time together was consensual and that Complainant never asked him to stop. Id. While the record reflects that Complainant told a couple of co-workers about the alleged sexual assaults by C1 around the time the alleged incidents occurred, the record reflects that there were no eyewitnesses to the alleged assaults. In addition, while Complainant asserts that she told the Assistant Captain (AC) about the alleged sexual assaults involving C1, AC’s testimony does not corroborate Complainant’s assertion. AC in a fact-finding conference testified that Complainant did not inform him of her allegations of sexual assault with C1. Supp. ROI 752-753. Rather, AC asserted that he had heard rumors of something going on between C1 and Complainant. AC stated that he asked Complainant repeatedly if something happened that she wanted to report or file a complaint on. Supp. ROI at 753. AC asserted that Complainant responded that nothing happened and she did not want to report anything. Id. AC stated that he keeps records when he speaks with employees and he did that with respect to Complainant. The record contains a copy of handwritten notes from AC corroborating his testimony. AC’s notes provided, in pertinent part, regarding Complainant that on “12/17”…asked if she felt violated and would like to file a complaint. Say no. I repeatedly asked.” Supp. ROI at 301-302. Upon review of the record, we also find some inconsistencies regarding Complainant’s account with respect to these matters. 2020004843 7 Complainant, in her formal EEO complaint, asserts that after the first encounter with C1 on December 9, 2014, she feared for her personal safety and attempted to avoid further contact with C1. ROI at 22. However, in her interview with Captain, Complainant acknowledged that she went to C1’s room on December 16, 2014 (subsequent to the alleged initial incident on December 9, 2014) to pick up some tea from him that he bought her while he was offboard. Supp. 321-324. Complainant, in her interview with Captain, also asserted that C1 texted her constantly. Supp. ROI at 315. When the Captain asked Complainant if she saved C1’s text messages, she stated “no, my phone was filling up, so no I erase[d].” Supp. ROI at 320. However, she subsequently provided a different reason for deleting C1’s text messages to another crew member. In a text message to another crew member on December 29, 2014, she stated “erased all [C1’s] texts too [before] things blew up [cause] wanted to forget [what] happened.” ROI at 326. As set forth above, Complainant did not request a hearing, thus we do not have the benefit of an AJ’s credibility determinations or further development of the record. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Brand v. Dep’t Of Agriculture. EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said/she said” situation where complainant requested a final decision and an AJ did not make credibility determinations). Claim 1(d)-Physical Assault Allegation Complainant failed to establish, by a preponderance of the evidence, that she was physically assaulted by C3. Complainant alleged that C3 grabbed her arm and pushed her against a wall in his room and that she fell on a pile of his shoes. ROI at 372-374. However, C3’s account, according to his testimony from the Agency’s AR 15-6 investigation, is that Complainant came to his room very intoxicated and was trying to kiss him. Supp. ROI at 431. C3 stated that he moved out of the way and Complainant tripped over his shoes. Id. C3 asserted that he did not push her. C3 further stated that the next morning Complainant had no recollection of what happened the night before. Id. There are subsequent events that call into question Complainant’s account of the incident at issue. After Complainant alleged that C3 physically assaulted her, she asked him to stop by via text message.7 Supp. ROI at 515. In addition, after C3 allegedly physically assaulted her, Complainant asserted in her interview with Captain that she returned to C3’s room multiple times. Supp. ROI 387-393. She asserts that she returned to C3’s room first to retrieve her water bottle and the second time to find out from C3 what had happened the night before. Id. 7 C3 responded via text that he could not stop by and that he was busy. Supp. ROI at 516. 2020004843 8 The Agency’s AR 15-6 investigation found with respect to the physical assault allegation that it appears to have been an accidental fall resulting from heavy intoxication and not being able to balance. Supp. ROI at 409. The record supports the AR 15-6’s finding that Complainant was intoxicated during the incident in question. Complainant in a text message to C3 acknowledged that she was “wasted” during the time in question. Supp. ROI at 519. In addition, C2 stated that on the night that the incident occurred with C3, Complainant was intoxicated and was on the ship ranting about C3 being a two-timer. Supp. ROI at 427. Based on the foregoing, and a lack of a hearing before an EEOC AJ that would have allowed for credibility determinations and further development of the record, we find that Complainant failed to establish, by a preponderance of the evidence, that she was physically assaulted by C3. CONCLUSION Accordingly, we vacate our initial decision dismissing Complainant’s appeal for being untimely filed. In addition, we AFFIRM the Agency’s final decision finding of no discrimination with respect to the above referenced claims.8 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). 8 We provide the parties a right to request reconsideration solely for the finding of no discrimination on claims 1(a)-1(d), because this is our first time addressing these claims on the merits. 2020004843 9 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2020004843 10 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 25, 2021 Date